An Egalitarian Argument for Punishing Poor People More Harshly

Consider the following argument: The same punishment for different people is not in fact the same. Thinking of a criminal fine is the easiest example. A $1000 fine levied on an offender who is a millionaire is simply not as serious of a sanction as a $1000 fine leveled against a poor criminal. The millionaire can pay the fine without noticing it, while the poor criminal may be subjected to considerable economic hardship. The result is that the $1000 fine will not have much deterrent effect against the millionaire. To get his attention we require a much harsher punishment. So far so good.

Now consider prison sentences. Here, it seems to me, that the situation is reversed. Even a modest prison sentence — say of six months to a year — could have a devastating effect on an upper class defendant. The opportunity costs of foregone income will be substantial. Furthermore, there may be far more ancillary consequences in the form of foregone opportunities, and the like. A lawyer, for example, might lose the ability to practice law in the future. In contrast, a poor criminal with few opportunities faces fewer costs from the same length of time in prison. The opportunity costs in terms of foregone income will be much lower, and if the criminal really has few opportunities to begin with then the prison term may have a relatively small impact on one’s future prospects.

If the analysis in the above paragraph is correct it suggests that those in poor communities receive dramatically less protection than those in richer communities. This is not simply because those in richer communities tend to have more resources lavished upon them in the form of protection and law enforcement. It is also that — to the extent that the population of potential criminals who might victimize them are also wealthy — they are protected by larger sanctions against criminals. In contrast, so long as prison sentences are insensitive to the wealth of the criminal, those in poorer neighborhoods are protected by comparatively weaker deterrents for wrong doers. (Again, assuming that the population of criminals likely to victimize poor communities is also poor.)

In order to achieve equal levels of deterrence across communities using incarceration, it seems to me that we must punish poor criminals with longer prison sentences than comparable rich criminals. It is not that poor criminals are more deserving of punishment, although my initial intuition is that that those who prey on the poor are more culpable than those who prey on the rich. Rather, the argument for punishing poor criminals more harshly is to equalize the level of deterrence provided to all citizens. A regime of equal incarceration, in contrast, creates dramatic inequalities in the level of protection provided to citizens of different socio-economic status.

Of course, another solution would be to adopt a method of punishment where the cost imposed on the criminal is less sensitive to the criminal’s wealth. The stocks or publish whippings come to mind…